OP-INDEPENDENT: The best government money can buy

Soon after the U.S. Supreme Court rendered its controversial Citizens United decision, a national poll revealed that only 22 percent of Americans had ever heard of the ruling. And yet, barring a Constitutional amendment, the decision will have far-reaching consequences for every American, as it will dramatically affect the way our electoral process is financed.

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By Michael Weymouth

Wicked Local

By Michael Weymouth

Posted Apr. 20, 2014 at 10:00 AM

By Michael Weymouth

Posted Apr. 20, 2014 at 10:00 AM

» Social News

Soon after the U.S. Supreme Court rendered its controversial Citizens United decision, a national poll revealed that only 22 percent of Americans had ever heard of the ruling. And yet, barring a Constitutional amendment, the decision will have far-reaching consequences for every American, as it will dramatically affect the way our electoral process is financed. If you believe money buys political influence then we have taken a giant step toward giving more power to the wealthiest Americans.

More recently, under the guise of free speech, with McCutcheon v. the FEC (Federal Election Commission) the Supreme Court gave further power to the wealthy by striking down caps on how much an individual can give in total to federal candidates and party committees.

A key to understanding these decisions is to look at the ideological composition of the Supreme Court justices, for it is these disparate belief systems that shape the Court’s decisions.

Originalists, as the name suggests, attempt to put themselves at the table with the Founders as they were writing the Constitution so as to better understand its original, exact meaning and to leverage that understanding to rendering their judgments. Think of the Constitution as a highway running through a new country. As cities grow, they should be located next to the highway, because it is the only highway there is or ever will be.

Purposivists presume that the Constitution could not possibly have been worded in such a way as to deal with all future legal issues and therefore the focus should not only be on the intent of the Founders but also on the possible unintended consequences of that intent. Back to the highway. As the country grows, new cities form, thus new exits and spurs are required, and yet the original highway remains intact.

Judicial activists are at the opposite end of the spectrum from the Originalists in that they believe the Constitution is a living, changeable and adaptable document, and furthermore that a ruling must be viewed in the context of contemporary society. In this case, the highway is occasionally rerouted to link the cities together.

Not all justices fall into these three categories, rather some simply render their decisions based on a case’s individual merits. However, these widely differing approaches to jurisprudence are not to be taken lightly as these two decisions alone will have profound effects on the role money plays in politics, and by extension, the form of government we end up with and whether or not our democracy remains, as Lincoln said, “…of the people, by the people and for the people.”

They also reflect the Purposivists’ concerns, i.e. they have resulted in quasi-political organizations such as super PACs (political action committees) that can funnel unlimited so-called “dark money” into whatever political campaigns they choose, even though the legal restrictions on a super PAC dictate that it must confine its message to social issues and not to supporting or attacking individual candidates. Enter unintended consequences. One has only to watch the recent TV commercials created by the Karl Rove super PAC, American Crossroads, attacking the campaign of New Hampshire’s Jeanne Shaheen to get the point. To be fair, The League of Conservation Voters has also run ads attacking Scott Brown’s connection to Big Oil.

Page 2 of 2 - As to original intent, Thomas Jefferson made his intent pretty clear on corporate influence when he wrote in 1816, “I hope that we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trail of strength, and bid defiance of the laws of the country.” The term “aristocracy” is key to Jefferson’s statement, and it seems unlikely that Jefferson would have agreed to giving corporations and wealthy Americans an influential leg up on those Americans who cannot afford a $5,200 contribution to every candidate in their party of choice.

Jefferson also clarifies exactness by stating, “The Constitution, is a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please,” which clearly acknowledges that the Constitution is open to interpretation, for better or, worse.

And then Benjamin Franklin said in 1787: “I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall ever approve them. For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise,” which suggests that he too saw the Constitution as a work in progress.

We as citizens do not vote for Supreme Court justices, however we do vote for the president who appoints them and the congressmen who approve them. In future election cycles we should carefully consider the Constitutional and judicial philosophies these candidates embrace, for they are a window into the kind of justices we will end up with. If Citizens United and McCutcheon are any indication, “we the people” have a lot to lose.

Michael Weymouth is a resident of Hingham and regular contributor to the Journal.